Editorial: Solicitor general nominee is latest to get Bork test

Posted: Wednesday, May 23, 2001

There are 100 vacancies in the federal courts and a judicial backlog of 50,000 civil and 48,000 criminal cases at the district level.

And still the beat goes on.

The political beating of presidential Cabinet nominations is reaching fever pitch as President Bush attempts to fulfill his constitutional responsibility. He wants an administration that reflects his core beliefs, and he hopes to construct a judicial system based on constitutionality and justice rather than political loyalty.

Bush might have more luck finding the proverbial needle in a haystack than selecting a candidate or nominee who can survive the infamous "Borking" test, where an individual is judged on perceived political bias rather than qualifications, such as former U.S. Supreme Court nominee Robert Bork.

Bush's nominee for solicitor general, Theodore Olson, is the latest example. Olson has been branded with the political version of the Scarlet Letter for representing Bush before the U.S. Supreme Court during the Florida election case.

Olson's association with a conservative publication also has drawn the wrath of Senate Democrats, nine of whom are members of the Senate Judiciary Committee.

Bush's judicial nominees also have fallen victim.

Roger Gregory, an African-American who was a temporary appointment by President Clinton to the 4th U.S. Circuit Court of Appeals, was described by Democrats as a "bone tossed to the left" when Bush included Gregory on an initial list of nominees May 8. Democrats contend the GOP already controls eight of the 13 courts of appeal and is vying for three more, so Gregory's nomination means little on the political scorecard.

It is precisely this type of partisanship that destroys the nomination process.

The president is entitled to nominate individuals for his Cabinet who complement his administration, not compete with it. Judicial nominees should be considered on experience and qualifications, not political leanings or a perceived voting record.

Unfortunately, such tactics are nothing new.

Politicians from both parties are guilty of "Borking" one another to death while government and the justice system wait patiently to fulfill the responsibilities of the people.

However, like the old saying goes, two wrongs do not make a right.

The nine Democratic members of the Senate Judiciary Committee can take a step toward civility, if not legitimacy, by judging on merit rather than revenge.